The United India Insurance Co. Ltd. Vs. Milagres Francisco Palha and Others - Court Judgment

1. Heard Mr. Netrawalkar, learned Counsel appearing on behalf of the appellant, Mr. Naik, learned Counsel appearing on behalf of respondents no. 1 to 5, Mr. Mulgaonkar, learned Counsel appearing on behalf of respondent no. 6 and Mr. Kantak, learned Counsel appearing on behalf of respondents no. 7 and 8.

2. On 24/04/2014, the parties agreed that the matter be disposed of at the stage of admission itself. Hence, the matter was heard finally.

3. By this appeal, the appellant has challenged the judgment and award dated 21/06/2013 passed by the learned Motor Accident Claims Tribunal at Panaji ('Tribunal', for short), in Claim Petition No. 54/2009.

4. The appellant, which was the insurer of Tempo bearing No. GA-01/T-9484 was the respondent no.2; respondents no. 1 to 5 were the claimants; respondent no. 6, the driver and owner of said Tempo bearing No. GA-01/T-9484 was respondent no. 1 whereas respondents no. 7 and 8, respectively the driver and owner of Kadamba Bus No. GA-01/X-0152, were the respondents no. 3 and 4 in the said Claim Petition No. 54 of 2009. Parties shall, hereinafter, be referred to as per their status in the Claim Petition.

5. The claimants had filed the said petition under Section 166 of the Motor Vehicles Act, 1988 for compensation on the ground of death of wife of the claimant no. 1 and mother of the claimants no. 2 to 5 in a motor vehicular accident which took place on 23/04/2009 at 19.20 hours at NH-17, Malwara, Agacaim.

6. The case of the claimants was that on that day and at the said time, respondent no. 1 was driving the Tempo bearing No. GA-01/T-9484 which was proceeding from Margao to Panaji, whereas respondent no. 3 was driving KTC Bus Bearing No. GA-01/X-0152 which was proceeding from Panaji towards Vasco. Both the drivers drove their vehicles in a rash and negligent manner, as a result of which the vehicles dashed against each other at Malwara, Agacaim and the deceased Ana Francisca Correia Palha expired as a result of injuries sustained by her in the said accident.

7. Respondent no. 1, who was the driver and owner of the said Tempo bearing No. GA-01/T-9484, stated in the written statement that on the relevant day, the deceased was travelling by his said Tempo as a representative of Jose Silveira and Bernadina Silveira, who had hired the same to transport the goods that were gifted by them to their daughter on the occasion of her marriage.

8. Respondent no. 2-Insurance Company, in its written statement, admitted that the said Tempo bearing No. GA-01/T-9484 was insured with it under Policy No. 120500/31/08/01/00003966 for the period from 11/10/2008 to 10/10/2009 and that its liability was governed by the terms and conditions of the said policy. It was specifically averred by respondent no. 2 that the deceased was travelling in the said Tempo as a gratuitous passenger and as such, respondent no. 2 was not liable to indemnify respondent no. 1.

9. The claimants had examined claimant no. 1, the father of the deceased, as AW1; an eye-witness, namely Antonio Gonsalves as AW2; one Shri Govind Gaonkar, one of the panch witnesses to the scene of accident panchanama and sketch as AW3; Shri Chandrahas Gaonkar, Head Constable then attached to Agacaim Police Station as AW4; and Shri Shamrao Chavan, the Police-Sub-Inspector then attached to Agacaim Police Station as AW5. Respondent no. 1 then examined himself as RW1 and Smt. Bernadina Fernandes e Silveira as RW2. Respondent no. 2 examined its Divisional Manager Shri Yeshwant Naik Rasaikar as RW3. Lastly, respondents no. 3 and 4 examined the respondent no. 3, Shashikant Shirodkar as RW4.

10. Upon consideration of the entire evidence on record, the learned Tribunal held that the accident was caused solely due to the rash and negligent driving of respondent no. 1, who was also the owner of the said Tempo which was insured with respondent no. 2. The Tribunal held that respondent no. 2 failed to prove that respondent no. 1 had violated the terms and conditions of the policy. Resultantly, respondents no. 1 and 2, jointly and severally were held liable to pay to the claimants the compensation of Rs. 2,75,000/- along with interest at the rate of 9% p.a. from the date of the application till the date of award and further interest at the same rate in case, the said amount was not paid within a month from the date of the award till the payment. The amount, if any, paid to the claimants under Section 140 of the M. V. Act has been ordered to be adjusted against the compensation.

11. The respondent no. 1, the owner of the offending vehicle has not filed any appeal. Respondent no. 2-Insurance Company is aggrieved by the impugned judgment and has filed the present appeal on the ground that the deceased was travelling in the insured goods vehicle bearing No. GA-01/T-9484 as a gratuitous passenger and, therefore, there was breach of the condition of Insurance policy and hence it was not liable to pay compensation to the claimants.

12. Mr. Netrawalkar, learned Counsel appearing on behalf of respondent no. 2 contended that by order dated 24/11/2009 passed by the Tribunal under Section 140 of the M. V. Act, the respondent no. 2 was absolved from liability, holding that the deceased was travelling as a passenger and hence was gratuitous passenger. He submitted that in terms Section 147(1) (b) of the M. V. Act, the owner of the goods or his authorised representative carried in the vehicle is insured. He pointed out from the evidence that Bernadina, the owner of the alleged goods as well as the deceased, who is called as representative of the owner, were travelling by the same Tempo. According to him, either the owner or the representative could be covered under the insurance policy and not both. He, therefore, stated that since the owner was also travelling in the Tempo, the deceased was a gratuitous passenger. He stated that even if it is held that the deceased was engaged to take care of any goods, still she cannot be covered, since there is breach of policy committed by the owner of the Tempo. He, therefore, urged that liability was only of the owner of the Tempo. Learned Counsel relied upon the following judgments :

(i) National Insurance Company Ltd Vs. Baljit Kaur and others, [2004 ACJ 428]

(ii) Subhash Vs. National Insurance Company Ltd. and others, [2011 ACJ 2230]

(iii) New India Assurance Company Ltd. Vs. Asha Rani and others, [2003 ACJ 1]

(iv) M. V. Jayadevappa and another Vs. Oriental Fire and General Insurance Company Ltd and others, [2005 ACJ 1801]

(v) National Insurance Company Ltd Vs. Bommithi Subbhayamma and others, [2005 ACJ 721]

(vi) New India Assurance Company Ltd Vs. Vedwati and others,[2007 ACJ 1043].

(vii) National Insurance Company Ltd Vs. Rattani and others, [2009 ACJ 925]

(viii) New Indian Assurance Company Ltd Vs. Laxmi Rama Padsalgi and others, [2010 ACJ 1041]

13. Learned Counsel appearing on behalf of respondent no. 2 further submitted that the evidence on record clearly establishes that no goods were carried in the said Tempo and, therefore, the case that the deceased was engaged to take care of some goods was totally false. He urged that even if it is held that the owner had delivered the goods and along the deceased was returning back, then also the deceased would become a gratuitous passenger. Learned Counsel, therefore, urged that the appeal be allowed and the Insurance Company be totally absolved.

14. On the other hand, Mr. Mulgaonkar, learned Counsel appearing on behalf respondent no. 1 submitted that the insurance policy was not an 'Act Policy' to cover only the third parties, but was 'Package Policy' in respect of the goods carrying (other than 3-WH) public carrier. He pointed out from the said insurance policy that the owner and the driver has been covered as well as four employees have been covered under the said policy. He, therefore, submitted that the policy being a comprehensive policy, respondent no. 2 has been rightly held to be liable to indemnify respondent no.1. He further contended that Section 147(1)(b)(i) is inclusive provision which includes the owner of the goods or authorised representative. He, therefore, submitted that both the owner of the goods or his authorised representative carried in the vehicle, were covered. He read out the evidence of AW1, AW5 and RW2 and contended that it was duly proved that the services of the deceased were engaged for the purpose of loading and unloading and taking care of the trousseau i.e. the goods that were being gifted to the daughter of RW2 and the accident had occurred while returning back with empty suitcases and baskets. He pointed out from the evidence of RW3, the representative of Insurance Company that under the policy, the persons, who were transporting the goods of the insured or who were travelling in the vehicle along with the goods of the insured, were covered. Learned Counsel appearing on behalf of respondent no. 6 relied upon the judgment of this Court in the case of œNational Insurance Company Ltd Vs. Smt. Ashwini Balu Gaude and others ?, [2012 (3) All MR 181]. He urged that the order dated 24/11/2009, on the application under section 140 of the M. V. Act was passed in the absence of respondent no. 1.

15. Mr. Naik, learned Counsel appearing on behalf of claimants adopted the arguments advanced by the learned Counsel for respondent no. 1.

16. Mr. Kantak, learned Counsel appearing on behalf of respondents no. 3 and 4 submitted that an amount of Rs. 25,000/- has been paid by respondent no. 4 to the claimants under Section 140 of the M. V. Act though as per the judgment and award, the entire compensation has to be paid, jointly and severally, by respondents no. 1 and 2. He, therefore, submitted that necessary observation for entitlement of respondent no. 4 to recover the said amount of Rs. 25,000/- be made in the judgment.

17. I have gone through the original record and proceedings in Claim Petition No. 54/2009. I have considered the submissions advanced by the learned Counsel for the parties and also the judgments relied upon by both the parties.

18. There is no dispute that respondent no 1 was the driver as well as owner of the Tempo No. GA-01/T-9484 and that the said Tempo was insured at the time of accident with respondent no. 2. RW1, respondent no.1, in his affidavit-in-evidence stated that his Pick-up bearing No. GA-01/T-9484 had valid Goods Carrying Public Carriers Package Policy and also had a valid permit and valid certificate of fitness as well as valid tax licence at the time of accident. He further stated that his Tempo was hired by Bernadina Silveira (RW2) and her husband both residents of Goa Velha to transport trousseau gifted by them to their daughter on the occasion of her marriage, to her marital house at Colva. He further stated that the deceased was travelling in his Pick-up as a representative of said Jose Silveira and his wife Bernadina. In the cross-examination, RW1 has denied the suggestion that the deceased was a gratuitous passenger. He stated that there were altogether four persons in the Pick-up excluding the driver. He denied the suggestion that all the other occupants of the Pick-up were gratuitous passengers. He has also denied the suggestion that he had used the vehicle for hiring passengers and thus had committed breach of terms and conditions of the policy.

19. AW5 Shri Shamrao Chavan, the then PSI attached to Agacaim Police Station, who carried out the investigation and filed charge sheet against respondent no. 1, has admitted in his cross-examination that the Tempo was hired by the marriage party to carry the wedding articles. He further admitted that the Tempo was a goods carrier and was with enclosed rear side and that the occupants were partly from Goa Velha, Agacaim, Azoshim and Merces. He further stated that the insured Jose had disclosed to him that all of them had gone to deliver the marriage gifts to the house of groom. He further stated that there were no goods in the Tempo and that it was empty except its occupants. 20. RW2, Mrs. Bernadina Fernandes e Silveira deposed that she had hired the Tempo belonging to respondent no. 1 to transport the trousseau items that were being gifted by them to their daughter on the occasion of her marriage, to her marital house at Colva and they had engaged the services of the deceased and two other persons for the purpose of loading and unloading the items that were being gifted by them to their daughter and the said persons were travelling along with the goods in the Tempo with her. She stated that her other family members were travelling in 3 different cars and were accompanying them to Colva. According to her, while they were returning back with empty suitcases, baskets, etc. used for transporting the items and when they had reached Agacaim near Cotta mansion, the accident took place. She deposed that after the accident, the empty suit cases and baskets were removed from the Tempo by her family members and were carried to their residence in the cars in which they were travelling, since the tempo would be taken to the Police Station along with KTC bus. That explains as to why according to AW5, the tempo was empty. In her cross-examination, RW2 stated that she was sitting in the cabin of the Pick-up, whereas three persons were sitting in the carrier. She stated that Ana Francisco Fatima Correia (deceased) was brought by Celina for the purpose of doing the work of loading and unloading of trousseau. She denied the suggestion that she had not hired Tempo for taking trousseau of her daughter and that they had not engaged the services of the deceased and others for loading and unloading the trousseau. She has denied the suggestion that there were no empty suit cases and baskets in the Pick-up. She has specifically denied the suggestion that the deceased and others were gratuitous passengers.

21. The above evidence on record, in my considered view, establishes that the deceased was a representative of the owner of the goods i.e. the trousseau items (gifts), which were carried by the said Tempo, being engaged for loading and unloading the said items.

22. The insurance policy is produced as Exhibit 87. RW3, Shri Yeshwant A. Naik, the Divisional Manager of the respondent no.2, himself, deposed in his cross-examination that under the policy at Exhibit 87, the persons who are transporting the goods of the insured or who are travelling in the vehicle along with the goods of the insured are covered. The deceased was travelling along with the goods of the insured and in fact was representative of the owners of the goods which were transported in the said Tempo as he was engaged for loading and unloading the same. The work of unloading the empty suitcases and baskets after reaching home had to be done by the deceased but unfortunately, the accident occurred and she died as a result of injuries sustained in that accident.

23. (A) In the case of œBaljit Kaur? (supra), the victim was returning in the truck from a marriage ceremony, died as a result of the rash and negligent driving by the driver of the said goods vehicle. it has been held that the term œany person? used in Section 147(1) of the M. V. Act includes a third party as also the owner of the goods or his authorised representative carried in a goods vehicle, but does not include any passenger carried in a goods vehicle whether for hire for reward or otherwise. The victim was held to be a gratuitous passenger.

(B) In the case of œSubhash? (supra), a passenger travelling in goods vehicle and who was returning home after unloading and selling his agricultural produce, had sustained injuries. It was held that he was a gratuitous passenger and Insurance Company was not liable for gratuitous passenger. Here also the victim had not hired the said goods vehicle nor was a representative of owner of any goods who had hired the said vehicle to carry his goods. He was admittedly travelling as a gratuitous passenger.

(C) In the case of œAsha Rani? (supra), the interpretation of the provisions in Section 147 of M. V. Act as it stood prior to its amendment in 1994 was involved. It has been held that prior to the amendment of 1994 to Section 147(1) of the M. V. Act, the death or injuries sustained by the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident, were not covered under the insurance and, therefore, the Insurance Company was not liable. The above case is not applicable to the facts of the present case as here the matter pertains to the provisions of Section 147, after its amendment.

(D) In the case of œM. V. Jayadevappa and another? (supra), it was the contention of owner of the vehicle that his said vehicle was a passenger vehicle. But from the Insurance Policy it was found that the vehicle was a goods vehicle and could not have carried passengers. It has been held that in respect of the vehicle which is goods vehicle and not authorised to carry passengers, the Insurance Company is not liable for death or injury to any passenger.

(E) In the case of œBommithi Subbhayamma and others,? (supra), the deceased was travelling in a lorry which met with an accident resulting in the death of the deceased. It has been held that although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people. It was thus held that the death of gratuitous passenger in a truck i.e. goods vehicle when it met with an accident, is not covered under insurance policy and the Insurance Company is not liable to pay compensation.

(F) In the case of œVedwati and others? (supra), the deceased was returning from his village in a tractor after delivering certain goods there and the tractor overturned due to the rash and negligent driving by the driver, with the result the deceased lost his life. It has been held that the Insurance Company is not liable to pay compensation in respect of any passenger travelling in the goods vehicle.

(G) In the case of œRattani and others? (supra), the deceased along with others was travelling as 'barati' in Tata 407 and after attending the marriage they were returning in the said Tata 407 which was driven rashly and negligently resulting it to turn turtle and the deceased died as a result of the said accident. It has been held that the victims of the accident travelling in the truck of goods vehicle are gratuitous passengers and Insurance Company is exempted from liability.

(H) Lastly, in the case of œLaxmi Rama Padsalgi and others? (supra), the deceased was sitting in the cabin of the truck which met with an accident and died. It was not mentioned in the claim petition as to in what capacity the deceased was travelling in that truck. The Insurance company had pleaded that the deceased was a gratuitous passenger. The claimants could not prove that the deceased as a contractor was being carried by the owner in the course of employment and not other way round. It has been held that the Insurance Company is not liable to pay compensation in respect of a gratuitous passenger travelling in goods vehicle.

24. Thus, it can be understood that all the above judgments relied upon by the learned Counsel for the respondent no. 2 pertain to a gratuitous passenger travelling in goods vehicle and not to the owner of the goods carried by the goods vehicle or the representative of the said owner. Hence, none of the above Judgments are applicable to the present case. In the present case, the evidence on record duly proves that the deceased was not a passenger in the said Tempo, but was a representative of the owner of the goods, which were carried in the said Tempo, which was hired by the owners of the goods. The deceased was employed for loading and unloading the said goods and was returning back as representative of the said owners, with empty suitcases and baskets, from which the goods were removed. Goods are defined in Section 2(13) of the M. V. Act to include livestock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle expect living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle. The goods in the present case were gifts for daughter on the occasion of her marriage and are duly covered by the definition under Section 2(13) of the M. V. Act. In the circumstances above, as deposed by RW3, the Divisional Manager of the respondent no. 2, the deceased was covered under the insurance policy.

25. In the case of œAshwini Balu Gaude and others? (supra), this Court has held that the person engaged to take care of marriage presents was not a gratuitous passenger and the insurer was liable to pay compensation awarded by the Tribunal.

26. Section 147(1)(b)(i) provides as under:

œS.147. Requirements of Policies and limits of liability “

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(a) ...............................................................................

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;?

27. A bare reading of the above provision reveals that it is inclusive provision in respect of death or bodily injury to any person and that it includes the owner of the goods or authorised representative carried in a vehicle. Therefore, it cannot be said that if the owner of the goods travelled in the said vehicle, representative of the owner is not covered. Both owner of the goods as well as the authorised representative of the owner of the goods are now covered in view of the amended provision of Section 147(1) of the M. V. Act.

28. The insurance policy at Exhibit 87 is a Goods Carrying (other than 3-WH) Public Carriers Package Policy and the liability of owner-driver as well as four employees is covered under it. This is not an 'Act Policy' to cover only the third parties. Section 2(f) of the said Policy reads that except so far as is necessary to meet the requirements of the Motor Vehicles Act, the Company shall not be liable in respect of the death and/or bodily injury to any person(s), who is/ are not employee(s) of the insured and not being carried for hire or reward, other than the owner of the goods or representative of the owner of the goods being carried in or upon or entering or mounting or alighting from the insured vehicle described in the schedule of this policy. Therefore, it is evident that the owner of the goods carried by the said vehicle as well as the representative of the said owner of the goods is covered under this policy.

29. It is true that the respondent no.2 was absolved from payment of compensation under Section 140 of the M. V. Act based on œNo Fault Liability?. In the order dated 24/11/2009 on the application under Section 140 of the M. V. Act, the Tribunal held that there was no dispute that the deceased was travelling as gratuitous passenger. This order was passed without participation of respondent no 1 in the said proceedings. The respondent no. 1 filed his written statement on 15/04/2011 wherein he claimed that the deceased was travelling in his Pickup as representative of Mr. Jose Silveira and his wife Bernadina Silveira, who had hired the Pick-up to transport the goods i.e. gifts given by them to their daughter on the occasion of her marriage, to her marital house. The said order dated 24/11/2009 is not binding on the respondent no. 1.

30. In view of the discussion supra, I find that there is no merit in the present appeal, which deserves to be dismissed.

31. In the result, the appeal is dismissed. However, in the facts and circumstances of the case, no order as to costs.